Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 ("the
International Tribunal") is an application entitled "Prosecutors
Submissions Concerning Witness List, Rebuttal Exhibits, Zagreb Exhibits and
Presidential Transcripts" filed by the Office of the Prosecutor ("the
Prosecution") on 30 October 2000 ("the Application").

The Application has already been determined insofar as it relates to the
witness list and admission of rebuttal evidence. The balance of the Application seeks the
admission of documents obtained from the Republic of Croatia, both in the form of
documentary evidence obtained from archives in Zagreb (the "Zagreb material")
and in the form of transcripts said to be of meetings held in the Office of the President
of the Republic of Croatia in Zagreb while Franjo Tudjman was President of the Republic of
Croatia and alleged to have been recorded on his instructions ("Presidential
Transcripts"). This Decision deals solely with these two classes of documents.

HAVING CONSIDERED the written submissions of the parties and their
oral arguments heard on 21, 22 and 23 November 2000 and

HAVING ISSUED ITS ORAL RULING in open session on 27 November 2000,

THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.

II. PROCEDURAL BACKGROUND AND GENERAL ARGUMENTS OF THE PARTIES

A. The Binding Orders to the Republic of Croatia

1. The trial against the two accused, Dario Kordic and Mario Cerkez commenced on 12 April 1999, more than
eighteen months ago. Prior to the commencement of the trial, the two accused had been held
in custody for a further year and a half. Throughout this period the Prosecution has been
attempting to obtain documents, for use in this case and others, relating to the
events in the Lasva Valley area of Central Bosnia, which were thought to have been
transferred to official archives in the Republic of Croatia. To achieve this, in addition
to numerous official requests made by the Prosecutor of the International Tribunal, the
Prosecution sought the assistance of both this Trial Chamber and other Trial Chambers by
way of binding orders addressed to the Republic of Croatia to produce such documents
pursuant to its obligation to assist the International Tribunal under Article 29 of its
Statute. At least three such Orders have been issued to the Republic of Croatia in this
case since January 1999.

2. The most relevant and comprehensive of these Orders issued by the Trial
Chamber was issued on 28 January 2000. This was an "omnibus" order ("the
Order of 28 January"), addressing four separate applications by the Prosecution,
and required production of documents listed in four confidential annexes.

B. The submission of the Zagreb material

3. Due to the outstanding Orders for production of these materials, at the
end of presentation of its case, in March 2000, the Prosecution was permitted not to close
its case but to leave open the possibility of introducing documents obtained at a later
stage.

4. Both accused have now completed presentation of their defence cases and
the trial is expected to conclude shortly, with only the rebuttal and rejoinder phases of
the proceedings, and closing arguments remaining.

5. With this in mind, in October 2000 the Trial Chamber indicated to the
Prosecution that any additional material to be introduced ("the Zagreb
material") would have to be disclosed to counsel for the accused Dario Kordic
("the Kordic Defence") and to counsel for the accused
Mario Cerkez (the Cerkez Defence") by 30 October 2000, so that
rulings could be made as to admissibility and still permit the Defence to have sufficient
time to investigate matters disclosed by the Zagreb material. The two Defence teams were
given until 15 November 2000 to file their responses to the materials and until
17 November 2000 (subsequently extended by one week) to disclose their own rejoinder
material.

6. On 30 October 2000 the Prosecution filed a confidential
"Prosecutors Submissions Concering [sic] Witness List, Rebuttal Exhibits,
"Zagreb Exhibits" and Presidential Transcripts". In this filing the
Prosecution identified certain Presidential Transcripts that it sought to introduce and
listed a number of potential witnesses to testify concerning the Zagreb material and the
Presidential Transcripts. The Zagreb material was identified only by an incomplete
schedule listing more than 300 documents. Complete listings were only supplied to the
Trial Chamber and the Defence on 17 November 2000, shortly before oral argument was to be
heard on the admissibility of the material. The Trial Chamber has used the numbering in
the listings provided on 17 November 2000 for the purposes of this Decision.

7. The Kordic Defence filed its confidential response as required on 15
November 2000, followed by a confidential "Brief on Objections to Anonymously
Authored Intelligence Agency Documents as Unreliable and Contradicted by the Unanimous
Testimony of Witnesses in this Case" filed on 20 November 2000. On 23 November 2000
the Kordic Defence filed a confidential "Submission Regarding Late Disclosure of
Transcripts of Meetings between President Tudjman and Others". The Cerkez
Defence joined in the objections raised by the Kordic Defence and added specific comments
on certain documents in a confidential filing on 17 November 2000. The Prosecution also
filed a "Memorandum Brief Concerning Production of Zagreb Evidence"
and a "Memorandum Concerning Admission of Zagreb Evidence and Exhibit 1367.1" on
20 and 21 November 2000 respectively, and a confidential "Response to
Defendant Kordics Objections to Anonymously Authored Documents"
filed on 23 November 2000. A confidential ex parte filing as to the status of the
various binding orders and requests for assistance addressed to the Republic of Croatia
was filed by the Prosecution on 24 November 2000.

8. Oral argument on the admissibility of the Zagreb material and the
Presidential Transcripts was heard over a period of three days, from 21 to 23 November
2000. During the hearing the Prosecution was requested to focus on those documents of most
importance to it. As a result of that request the Prosecution was able to identify a total
of 92 documents and 14 Presidential Transcripts and the parties addressed specific
arguments to these documents.

9. The Prosecution called one witness, Marko Prelec, to testify in open
session as to the arrangements for access to various documents, including items from the
Croatian Defence Council ("HVO"), maintained in an archive located in Zagreb
("the HVO archive"). This witness confirmed that the Prosecution now has access
to these materials and is conducting an ongoing review of the HVO archive. Access to the
documents had also been provided simultaneously to various defence counsel appearing
before the International Tribunal.

10. The Prosecution also called two witnesses who testified in closed
session as to the manner in which certain meetings of the President of Croatia and others
had been recorded and transcribed between 1991 and 1999 and how access to the Presidential
Transcripts had been regulated since then.

11. The Trial Chamber reserved its decision on the admissibility of both
the Zagreb material and the Presidential Transcripts.

C. The Arguments of the Parties

1. The Prosecution

12. The Prosecution has divided its arguments on admissibility into a
number of distinct categories. First there is general argument as to the character and
admissibility of the Zagreb material. The specific documents are then divided into three
groups, those relating to the accused Kordic, those relating to the accused Cerkez and
miscellaneous. One potential exhibit, exhibit 610.1, the Book of Observations of the
Officer on duty in the Central Bosnia Operative Zone ("the War Diary") is
addressed separately, as are the Presidential Transcripts.

13. The Prosecution argues that the jurisprudence of the International
Tribunal is such that an inclusive approach must be taken to evidence. It asserts that the
types of practices that might apply in a national system as to the production or
authentication of documentary evidence are not applicable in a system that lacks
enforcement powers of its own and which cannot always rely upon cooperation from relevant
authorities. Instead, the Prosecution argues that the International Tribunal has to take
account of the "peculiarities and difficulties of unearthing and assembling material
for war crimes prosecutions"1.

14. The Prosecution notes that, from before this trial began, it has
attempted to obtain and provide to the Trial Chamber the best evidence available. Much of
that material has been under the control or in the possession of the Republic of Croatia
and it is only recently that the Prosecution has been able to gain access. The Prosecution
argues that it should not be prejudiced or penalised for any obstruction or delay on the
part of Croatia and that to exclude the Zagreb material now "would unjustly impair
and prejudice the mission of this Tribunal"2 and would reward those forces
that prevented the Trial Chamber from receiving evidence that should have been provided
much earlier. The Prosecution argues that the Trial Chamber must consider the Zagreb
material as a whole and that the documents corroborate and confirm each other. The
Prosecution concludes from these arguments that the Zagreb material is relevant and
admissible.

15. In its oral arguments, the Prosecution contended that the standard for
admission of the Zagreb material should be the same as that applied throughout the trial.
In response to a question from the Trial Chamber as to the impact of admitting the Zagreb
material at this stage of the trial, the Prosecution asserted that the same rules for
admission should apply: the rules of evidence are the same at all parts of the trial. The
Prosecution has been diligent in obtaining the Zagreb material and has made tremendous
efforts to place the Zagreb material before the Trial Chamber and should not be penalised
or prejudiced as a result of the length of time it has actually taken. To exclude the
Zagreb material, even at this late stage of the proceedings would "be the wrong
message to send".3

16. The Prosecution conceded that documents that were repetitious or
peripheral need not be admitted but noted that it has already screened the Zagreb material
for relevance and is putting forward only that material thought to be helpful to the Trial
Chamber on the issues in this case.

17. In oral submissions, the Prosecution addressed itself also to the
specific nature of the documents on which it placed greatest reliance.

2. The Kordic Defence

18. The Kordic Defence notes that it has already presented its defence to the case
brought by the Prosecution. It argues that the introduction of a mass of additional
material at this stage of the trial risks rendering the proceedings unfair and violating
the rights of the accused guaranteed by Articles 20 and 21 of the Statute of the
International Tribunal. In oral submissions the Kordic Defence also argued that it was
inappropriate for the accused to be penalised for any lack of action by the Republic of
Croatia as this would be contrary to the paramount rights of the accused in criminal
proceedings.

19. The Kordic Defence notes that many of the documents do not bear any archival stamp
and seeks to have all such documents excluded, as simply being additional evidence that
should have been presented during the Prosecution case, rather than being newly-available
"Zagreb material". Many of these documents are said to be unauthenticated, and
the Kordic Defence argues that therefore they do not meet the requirements of reliability
enunciated by the Appeals Chamber of the International Tribunal in both this and other
cases.

20. The Kordic Defence presented specific objections to individual documents, both in
written submissions and in its oral argument. These include objections as to late receipt
of the document; lack of relevance; the cumulative nature of the proposed evidence; the
hearsay character of the material; lack of foundation; lack of any authentication; the
fact that documents are unsigned and unstamped;

21. The Kordic Defence notes that a number of the documents have already been admitted
in these proceedings.

22. Finally, the Kordic Defence argues that the prejudicial effect of admission of
certain of the documents at this stage of the proceedings would outweigh their probative
value and so the documents should be excluded pursuant to Rule 89 (D) of the Rules of
Procedure and Evidence of the International Tribunal ("the Rules").

3. The Cerkez Defence

23. The Cerkez Defence joins in the general objections to admission of the Zagreb
material. It argues that, had the Zagreb material been available during the Cerkez Defence
case, the material could have been put to Defence witnesses and challenged in this way.
The CerkezDefence asserts that to admit the Zagreb material at this stage of the
proceedings would be in breach of Rule 89 (D). Certain documents are also said to relate
to events after 30 September 1993, that is, outside the scope of the indictment. In
addition, the Cerkez Defence noted that the documents had been in the hands of a number of
different agencies in the period from 1993 to discovery, with opportunity for tampering
with or falsifying certain documents.

24. The Cerkez Defence also raises a number of specific objections in connection with
individual documents. In particular, the Cerkez Defence raises objections as to: late
disclosure by the Prosecutor, after 30 October 2000; the lack of any archive stamp on
certain documents; differences in format and signatures, all raising concerns as to
authenticity; the cumulative nature of many of the documents; and asserts that the
Prosecution has failed to establish that the documents are relevant to the charges against
the accused, Mario Cerkez.

25. The Cerkez Defence notes that one document, exhibit 673.4, was introduced during
the trial of Colonel Blaskic before the International Tribunal and so has been available
to the Prosecution for some time.

4. The War Diary

(a) Prosecution arguments

26. The Prosecution seeks to admit exhibit 610.1, a Book of Observations of the Officer
on Duty in the Central Bosnia Operative Zone, generally referred to as the "War
Diary". The Prosecution asserts that this document, which was discovered in the HVO
archives, is of considerable value as it reflects in detail the events in the period
around 16 April 1993. The Prosecution argues that, both by its form and its content,
it is not capable of having been fabricated. The final page bears a certification by
Colonel Blaskic and the copy produced bears the archive stamp on every page. The War Diary
is said to reflect events in the immediate region from January to May 1993, including
orders given by the accused, Dario Kordic. Although it is noted that two pages have been
removed, the Prosecution seeks its admission as a document that is likely to be an
accurate reflection of what was being done and said at the Hotel Vitez at the time.

(b)The Kordic Defence

27. The Kordic Defence asserts that the War Diary lacks authentication and foundation
and is based on multiple levels of hearsay. It challenges the authenticity of the document
and notes that it has been tampered with. The Kordic Defence argues that it is not known
who made the individual entries and whether they were, in fact, made contemporaneously.
Certain events have entries running to several pages while others, said to be of similar
importance, are not even mentioned. The Kordic Defence contends that admission of the War
Diary at this stage of the proceedings would breach Rule 89 (D).

(c) The Cerkez Defence

28. The Cerkez Defence also asserts that admission of the War Diary would be contrary
to Rule 89 (D) and points out various contradictions within the document.

5. Presidential Transcripts

(a) Prosecution arguments

29. The Prosecution argues that Presidential Transcripts, alleged to be of
conversations said to have taken place in the Office of the President of the Republic of
Croatia, and which bear upon events in this case, should be admitted as relevant,
primarily to the question of international armed conflict as well as to certain issues
relating to Dario Kordic. In particular, in the Prosecutions submission, the
Presidential Transcripts demonstrate the extent of President Tudjmans control over
events in the Croatian Community (later Republic) of Herceg-Bosna.

(b) Kordic Defence

30. The Kordic Defence argues that the Prosecution has not established a foundation for
admitting the exhibits alleged to be transcripts of conversations that took place in the
Office of the President of the Republic of Croatia between 1991 and 1999. The Prosecution
has, moreover, in the Defences submission, failed to carry its burden of
authenticating the transcripts.

31. Secondly, in the Defences submission, the material contained in the
Presidential Transcripts is cumulative and repetitive and has no bearing on the core
issues in this case; namely, the guilt or innocence of the accused.

32. Thirdly, the Defence contends, admission of these transcripts would violate Rule 89
(D) of the Rules. Several of the central figures alleged to have participated in the
transcribed conversations are deceased.

(c) Cerkez Defence

33. The Cerkez Defence contends that proof of authenticity is a precondition to
admission of any document. The burden of proof rests with the Prosecution, who brought
only two witnesses to testify on the issue.

(d) Prosecution reply

34. The Prosecution submits that those transcripts disclosed to the Defence after the
deadline of 30 October 2000 were only received by the Prosecution from Zagreb on 13
November 2000 and were immediately transmitted to the Defence in the Croatian original.
The Prosecution argues however that there is no prejudice to the Defence, since the
content of the transcripts had previously been disclosed.

III. DISCUSSION

A. Applicable law

35. Rule 89 of the Rules reads:

Rule 89
General Provisions

(A) The rules of evidence set forth in this Section shall govern the
proceedings before the Chambers. The Chambers shall not be bound by national rules of
evidence.

(B) In cases not otherwise provided for in this Section, a Chamber shall
apply rules of evidence which will best favour a fair determination of the matter before
it and are consonant with the spirit of the Statute and the general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have
probative value.

(D) A Chamber may exclude evidence if its probative value is substantially
outweighed by the need to ensure a fair trial.

(E) A Chamber may request verification of the authenticity of evidence
obtained out of court.

B. Reasons

1. The relevant test

36. The Trial Chamber ruled upon the relevant test to be applied for
admission of the Zagreb Material on Tuesday 21 November 2000. In its ruling, the Trial
Chamber stated as follows:

JUDGE MAY: The Trial Chamber has had the opportunity of considering this
matter and of course during the break, during argument we have considered it. Having heard
the submissions, the test we propose to apply is this: First of all, we bear in mind that
the Prosecution did not formally close its case as far as the Zagreb documents were
concerned, and so technically, we are within its case. However, that is a technicality and
the reality of the position cannot be ignored which is that the admission of this evidence
is being sought after the close of the Defence case, and that is a consideration which we
must have in mind.

Accordingly, the test which we will apply is as follows: First,the
material must be new in the sense of not having been available to the

Prosecution with due diligence, before the end of its case. Pausing there,
I do not understand it to be suggested that any of this material was, in fact, available
at that time and accordingly, it is accepted that it is new. If that is not the case in
relation to any material, then the Defence should point it out.

Going on with the test, second, the material must not be cumulative, that
is, a repetition of evidence already given and it must be of significant relevance to the
core issues in the case such as those relating to the conduct of the accused.

Third, the admission of the evidence must be in the interests of justice,
that is, in the interests of assisting the Court in determining the guilt or innocence of
the accused and not be contrary to Rule 89(D).

That is the test that we will apply. The admissibility of each exhibit
will, of course, be considered separately.

I would add this: It's been submitted that to exclude the evidence would
be to penalise the Prosecution and to reward those who may have obstructed the disclosure
of this material. It's also submitted that to admit the evidence would be or may be to
penalise the Defence. Whether a party is penalised or not or obstructers are rewarded is
not a relevant consideration for the Court. We have to apply the law. We have to try and
establish the truth. We have to ensure the fairness of the trial to both parties, and we
also have to ensure that this trial is conducted expeditiously, which means, at the
present time, that it is concluded expeditiously and in a timely fashion.

Those are the considerations which govern the exercise of our discretion.4

37. The Trial Chamber has adopted the categorization of the Zagreb
material used by the Prosecution and will address each of the categories in turn.

2. The Presidential Transcripts

38. As far as transcripts are concerned, they all deal with matters which
have been the subject of much evidence in this case, namely the role of Croatia in the
conflict in Bosnia and Herzegovina. As such, it is the view of the Trial Chamber at this
stage in the case that admission would be cumulative and repetitious.

3. The Zagreb material

39. The Trial Chamber has examined the documents sought to be admitted.
The Trial Chamber finds that many documents are to be excluded for one or more of the
following reasons: (a) the document has already been admitted5;
(b) the material has already been produced in other proceedings before the International
Tribunal and therefore was available to the Prosecution when it presented its case; (c)
the material is not sufficiently significant to warrant admission at this late stage of
the proceedings; (d) the material is cumulative and does not add to the voluminous
material already in evidence; or (e) the material is based on anonymous sources or hearsay
statements that are incapable of now being tested by cross-examination.

40. In this latter case, the probative value of the evidence is so reduced
that it is "substantially outweighed by the need to ensure a fair trial", i.e.,
to admit it at this stage of the proceedings would violate the accuseds right to a
fair trial. Since the Defence would have no opportunity now of cross-examining any witness
about the reports, which are based on a variety of sources (sometimes anonymous), such
reports are excluded as it would be contrary to Rule 89 (D) to admit them at this late
stage of the proceedings.

41. Annexes 1  5 to this Decision set out the numbers of the
documents excluded in the various categories set out above. Some documents may appear in
more than one category.

42. After exclusion of all of the above material, some 16 exhibits remain,
namely, of the Kordic documents, items nos. 411.1, 421.3, 438.3, 439.2, 447.1, 1209.1 and
1356.4; of the Cerkez documents items nos. 569.1, 673.6, 673.7, 694.4, 726.3, 764.1 and
781.2; and of the miscellaneous documents items nos. 498.1 and 527.3. These exhibits will
be admitted.

43. The documents admitted are all orders or reports of a military nature,
relating to the accused (apart from one which concerns the Zenica shelling, another
disputed issue). They are all significant and relevant and are of a type which have been
generally admitted in the case. They speak for themselves and as such are all admissible.
But it may be noted, in relation to defence objections to authentication, that most are
signed and most bear the Zagreb archives stamp.

4. The War Diary

44. The copy War Diary (exhibit 610.1) is admitted as an important
document, contemporaneously made. It carries its own authenticity, being written in
several hands and having every sign of being what it purports to be, i.e., the log of the
duty officer of the Operative Zone made at the time by an officer who would have little
opportunity or reason to fabricate an entry unless instructed to do so. It bears a
certification on the last page, signed and stamped by Colonel Blaskic, that it was a notebook containing 96 pages, of which two
were missing. It bears the Zagreb archives stamp. The Trial Chamber is under a duty to try
and ascertain the truth and to deprive itself of this document would put that duty at
risk.

IV. DISPOSITION

For the foregoing reasons

PURSUANT TO Rule 89of the Rules of Procedure and Evidence
of the International Tribunal,

THE TRIAL CHAMBER GRANTS THE APPLICATION IN PART and admits the
documents marked as exhibits 411.1, 421.3, 438.3, 439.2, 447.1, 498.1, 527.3, 569.1,
610.1, 673.6, 673.7, 694.4, 726.3, 764.1, 781.2, 1209.1 and 1356.4 and DISMISSES THE
APPLICATION in all other respects.

Done in English and French, the English text being authoritative.

_____________________________
Richard May
Presiding

Dated this first day of December 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutors Memorandum Brief Concerning Production of
"Zagreb Evidence", 20 Nov. 2000, p. 3.2. Ibid., p. 11.3. Transcript 21 November 2000, TP 27332.4. Ibid., TP 27358  59.5. The Trial Chamber is particularly concerned by the large number of
documents presented for admission that already form part of the record. In addition to
putting the Trial Chamber and the parties to considerable effort to identify these items,
it also reflects on the enormous volume of documentary evidence that has already been
admitted in this trial and the consequent difficulties for all involved in managing it.